Order Date – 13 January 2023

Parties: M/s Midas Fertchem Impex Pvt Ltd. Vs Principal Commissioner of Customs

Facts – 

• The Appellants, M/s Midas Fertchem Impex Pvt Ltd & others, imported the goods described as “0.1 per cent natural brassinolide fertilizer” and classified it as fertilizer under various headings of Chapter 31 of Customs Tariff.
• It was alleged that the natural brassinolide is not a fertilizer at all but it is a plant growth regulator classifiable under CTH 38 08. Accordingly, show cause notices were issued to the appellants proposing to re-classify the consignments imported by them under CTH 3808 and recover the differential duty along with interest. 

Issue – 

• Whether the brassinolide is classifiable under CTH 38 08 or not? 
• Whether SCN under section 28 can be issued after the assessment is finalized?

Order – 

• The Tribunal held that an appeal against an assessment (including self-assessment) of any Bill of Entry is available to both sides. A notice under section 28 can be issued only after the assessment is modified on appeal renders section 28 itself otiose because there cannot be any SCN and adjudication by an officer to modify the assessment after an order in appeal is passed by the Commissioner (Appeals).
• It was observed that the goods imported by the Appellants in 20 Kg. drum or 25 packets of 1 Kg. each are available for retail sale and are in retail packages. It needs to be seen if there is sufficient evidence on record to suggest that the goods which were imported were in retail packings. There is no sufficient evidence to held so.
• It is undisputed that the imported goods were brassinolide. The imported goods will be intermediate preparations which are also squarely covered by CTH 3808 as per the explanatory notes to HSN 3808. Thus, Tribunal found that the imported good was clearly a preparation of Brassinolide and was not excluded from CTH 3808 by Chapter note 1(a)(2) to Chapter 38.
• The Tribunal held that the imported brassinolide were not articles which leaves with retail packings and preparations. It was found that the imported brassinolide was a preparation. Since the brassinolide is in the form indicated in CTH 3808 by being preparation, it is not excluded by Chapter Note 1 (a) (2). Therefore, it falls under CTH 3808.
• It was also held that any wrong classification or claim of an ineligible notification or wrong self-assessment of duty by an importer will not amount to mis-statement or suppression. Therefore extended period of limitation could not have been invoked in the present case.